Canada: An Alberta Response To The Rise In Vexatious And Abusive Litigation: Civil Practice Note 7 – Vexatious Application/Proceeding Show Cause Procedure (General Powers To Stay Or Dismiss A Frivolous, Vexatious, Or Abusive Application Or Proceeding)

The number of self-represented litigants ("SRLs") is
on the rise in Canada. Data collected by the National
Self-Represented Litigants Project in 2017 indicates that
approximately 70% of SRLs are plaintiffs or petitioners (Kaila
Scarrow et al, "Tracking the Trends of the Self-Represented
Litigant Phenomenon: Data from the National Self-Represented
Litigants Project, 2017). As such, Courts across the country are
increasingly dealing with pleadings filed by individuals who have
no legal training – some of whom are vexatious litigants.

To be clear, many plaintiff/petitioner SRLs bring legitimate
claims before the Courts. In such instances and assuming there is
no prejudice to the defendant, it is entirely appropriate that the
Clerks, the Court, and counsel accord these SRLs some degree of
leeway in respect of their pleadings.

However, Canadian Courts are increasingly confronted by abusive
litigation brought by SRLs. Some have mental health issues, while
others have become fixated on issues that consume them as
"querulous paranoiacs" (see Unrau v National Dental Examining Board, 2018
ABQB 874 at para. 7 ["Unrau"]).
Defendants who were served with such pleadings were often dragged
into lengthy and costly litigation. In most instances, these
defendants attempted to end the litigation by way of motions to
strike the abusive pleadings, summary dismissal or have the SRLs
declared to be vexatious litigants.

In short, Practice Note 7 (which is modelled on Rule 2.1 of the
Ontario Rules of Civil Procedure, RRO 1990, Reg 194) puts
in place a document-based "show cause" procedure (the
"Procedure") under Rule 3.68 to assist in the timely and
resource-effective management of potentially unmeritorious and
abusive litigation.

There are approximately six reported decisions in Alberta
considering applications brought pursuant to Practice Note 7. The
first was the October 24, 2018 decision in Unrau v National
Dental Examining Board, 2018 ABQB 874, where Associate Chief
Justice Rooke described the Procedure in detail.

In that case, the Plaintiff, Bernie Unrau, filed a Statement of
Claim against multiple entities, including: the National Dental
Examining Board, the Canadian Human Rights Commission, the City of
Calgary, the US Department of Justice and the FBI. The body of the
Statement of Claim made no reference to any of the individual
Defendants and referred to, among other things: defamation, libel,
slander, wrongful imprisonment, theft, "loss of gainful
employment", malicious prosecution, obstruction of justice and
"theft of 30 yrs IP – copy, pasted, hacked, keystrokes
monitored."

On an application by one of the Defendants pursuant to Practice
Note 7, Associate Chief Justice Rooke noted that the Procedure has
two steps:

The Court first evaluates the
sufficiency of the pleadings at issue by applying the Rule 3.68
test – whether the pleading provides a sufficient basis for
the Court and other parties to respond. The Court then notifies the
"Apparently Vexatious Litigant" ("AVL") who
filed the Apparently Vexatious Application or Proceeding
("AVAP") that the Court is considering an order to stay
or dismiss the AVAP. The AVL then has 14 days to "show
cause" with a written response of no more than 10 pages.

After that period, the Court will
issue a second decision as to whether the AVAP should be stayed or
dismissed. If the AVL has not rebutted the defect(s) identified in
the first Court decision, then the AVAP will be dismissed in whole
or in part.

At the first step, pleadings are to be read generously
to allow for drafting deficiencies (Unrau at para. 26).
However, "bald allegations" and claims that do not
provide sufficient detail that permit a responding party to make a
substantial response are not an adequate basis for an action.
Similarly, Courts and parties have no obligation to respond to an
action or application where the facts and issues are not identified
or discernible, or where the document is simply gibberish
(Unrau at para. 27).

With respect to Mr. Unrau's Statement of Claim, Associate
Chief Justice Rooke found that it was a suitable candidate for
review via the Procedure as, on its face, the pleading exhibited
critical deficiencies. For example, Associate Chief Justice Rooke
found that the pleading was composed entirely of bald allegations
and did not provide a basis for the Defendants to make a meaningful
response. In the circumstances, that was prima facie
evidence that the Statement of Claim was an abuse of the Court
process and should be struck out (Unrau at para. 28).

In addition, Associate Chief Justice Rooke found that the
pleading exhibited a number of abusive litigation indicia,
including: global but unsubstantiated complaints of conspiratorial
and abusive conduct; apparently unwarranted relief claims (such as
$5 million in damages); and, impossible claims such as "more
open mindedness" and "respect". In this regard, he
found that these were a separate basis upon which the Statement of
Claim could be struck out as abusive.

Given that he had concluded that the Statement of Claim appeared
to be an abuse of the Court process, Associate Chief Justice Rooke
stayed the action until further notice. He then proceeded to the
second step of the Procedure:

Unrau had until 14 days after the
decision was filed and served to prepare a Written Submission of no
more than 10 pages, to be filed and served on all of the
parties.

If no Written Submission was received
by the Court by that deadline, the Court would proceed to render
its final decision on whether the Unrau Statement of Claim should
be struck out in whole or in part, per Rule 3.68.

If Unrau provided and served a
Written Submission, then the remaining Defendants to the action
would have seven days to make a Written Reply of up to 10 pages in
length.

After receipt of Unrau's Written
Submission and the Defendants' Written Replies, if any, the
Court would render its final decision on whether the Unrau
Statement of Claim should be struck out in whole or in part,
pursuant to Rule 3.68 (Civil Practice Note No. 7, para 3(e)).

There are no further reported decisions in respect of the Unrau
matter, so it is not known whether Mr. Unrau was able to rebut the
deficiencies identified in his Statement of Claim.

In the only reported decision to date where the Court has
considered the second step of the Procedure after initially staying
the action (Bruce v Bowden Institution, 2018 ABQB 970),
Mr. Justice J.T. Henderson began his analysis by considering the
Written Submission of the Applicant (an inmate who filed an
Originating Notice of habeus corpus from the Bowden
Correctional Institution alleging that he was being unlawfully
detained). Justice Henderson then advised the Respondent that no
Written Reply was required; he would proceed directly to issue his
final decision on whether the Applicant's habeus
corpus application had potential merit or should be struck out
pursuant to Rule 3.68. Having found that the Applicant's
habeus corpus application had no basis in law, Justice
Henderson found that it should be struck out forthwith.

Mr. Justice Henderson also issued an Order pursuant to Practice
Note 7 (which provides that, upon making an Order to stay or
dismiss an AVAP under its summary procedures, the Court may also
make an Order prohibiting the AVL from making any further
applications in any proceeding, except with leave of the Court)
requiring the Applicant to obtain leave from the Court to file
any further applications in any Court in Alberta.

Finally, it should be noted that not only can Practice Note 7 be
used to stop vexatious proceedings at the outset of litigation, it
can also be used to make interim orders during the course of
ongoing litigation. For example, in a vexatious litigant
application argued by Alan S. Rudakoff, Q.C. and Laura
Bracco-Callaghan of Scott Venturo Rudakoff LLP on February 14,
2019, Madam Justice Marriott (on her own motion) referred to the
Unrau decision and invoked Practice Note 7 to impose a
comprehensive interim Order on the Respondent restricting his
ability to commence or proceed with any litigation in the province
of Alberta pending her final ruling with respect to the vexatious
litigant motion.

While Practice Note 7 is reserved for "clear cases of
abuse" where "... the frivolous, vexatious, or abusive
nature of the proceeding should be apparent on the face of the
pleading" (Unrau at para. 22), from a review of the
case authorities to date, it appears that Alberta Courts have
embraced the Procedure and are keen to implement it, along with
further court access restrictions, where appropriate. As such, when
faced with an apparently vexatious pleading, counsel should
consider whether an application pursuant to Practice Note 7 might
be able to bring a swift and cost-effective end to the
litigation.

About
Mackrell International - Canada - Scott Venturo LLP is
a full service business law firm in Calgary, AB and a member of
Mackrell International. Mackrell International - Canada is
comprised of four independent law firms in Alberta, British
Columbia, Ontario and Quebec. Each firm is regionally based and
well-connected in our communities, an advantage shared with our
clients. With close relations amongst our Canadian member firms, we
are committed to working with clients who have legal needs in
multiple jurisdictions within Canada.

This article is intended to be an overview and is for
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There was a very significant amendment to the British Columbia Supreme Court Civil Rules in relation to expert reports in motor vehicle claims (and as of February 1, 2020, all personal injury actions).

The Alberta Court of Queen's Bench recently struck a proposed class proceeding as an abuse of process, refused to allow the proposed representative plaintiff (a non-lawyer) to represent the proposed class...

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